Kavanaugh now excusing past lies by using George Bush's old "Terrorist Surveillance Program" canard.

He was in the loop on a September 17 2001 Yoo memo that was underpinning for later October 4 and November 2 members authorizing illegal wiretapping.

This is important bc the wireless wiretapping started at NSA before the October 4 memo. Also important, because the prior wiretapping was broader than that authorized by November 2 memo. (In part, it authorized wiretapping of people who might be anthrax culprits)

Leahy asking to make docs public, It's not fair to me and not fair to Judge Kavanaugh to ask him about the memos.

Leahy: I want the docs I directly asked for on August 16, directly relevant to his own emails to John Yoo.

BRETT KAVANAUGH WAS IN THE LOOP ON (BROADER) PRECURSOR TO JOHN YOO’S STELLAR WIND MEMOS

September 5, 2018/0 Comments/in EO 12333 /by emptywheel

Patrick Leahy just had two key interactions with Brett Kavanaugh. In the first, he made it clear that Kavanaugh had received emails Manny Miranda stole from Democrats, including Leahy himself, while working at the White House.

In the second, he asked Kavanaugh whether he still stood by his claim not to have been involved in the authorization for Stellar Wind. Kavanaugh almost immediately reverted to the dodge that George Bush used when denying he had ignored FISA — referring to just a subset of the program, for which the Bush White House invented the term “Terrorist Surveillance Program.

But Leahy persisted, asking specifically about this document (see page 13; significantly, Steven Bradbury left the document off a FOIA Vaughn Index about documents pertaining to the “TSP”).

From the context, it’s clear that Kavanaugh was in the loop on this document, even if he wasn’t on the later documents.

That’s important for several reasons. First, I’ve been told that the NSA started implementing Stellar Wind in response to a Finding (note, this document has the same date as the Gloves Come Off Memorandum of Notification that, according to Jane Meyer, included surveillance) before the October 4 OLC memo.

I’ve also been told that NSA conducted activities that are broader than what got covered by Yoo’s later memos under that Finding. That would make this Finding parallel to the July 13, 2002 John Yoo Fax under which CIA’s torture operated (which is how CIA claimed stuff that went beyond what was approved in the August 1, 2002 Bybee Memos still had DOJ authorization).

If that’s right, then Kavanaugh may not have been involved in authorizing illegal surveillance targeted at terrorists (and also potential culprits of the anthrax attack). But he would have been involved in authorizing even broader surveillance.

Leahy already asked to have the documents showing Kavanaugh’s involvement in this memo released publicly. He renewed that request today.

This underlying September 17 document has never been released, so we don’t know how extreme John Yoo got. But we may soon have the proof that Kavanaugh was involved in authorizing surveillance that goes beyond the scope of what we know got authorized as the Stellar Wind program.https://www.emptywheel.net/2018/09/05/b ... ind-memos/

Zarina ZabriskyZarina Zabrisky is the author of IRON and CUTE TOMBSTONE, EXPLOSION, a poetry book GREEN LIONS, and a novel WE, MONSTERS. More at http://www.zarinazabrisky.com.Sep 5

WHY KAVANAUGH

The Way to a Lifelong Presidency

A screenshot from an article covering Kavanaugh’s appointment from the Komsomolskaya Pravda (“Young Leninist Truth.”)MECHANISM TO SUPPRESS THE INVESTIGATION BY APPOINTING LOYAL PEOPLE: KRUGOVAYA PORUKABy appointing judges and DOJ leads involved with the Kremlin, compromised or used by it, Trump is applying the Kremlin’s pattern.Putin is known to install loyal people in all positions of power. The mechanism, in turn, mirrors Yeltsin’s move to cover up the corruption that brought Putin to power: installing loyal people in key positions and creating a network of support. In Russian, there is a term for this: “круговая порука” that can be translated as either “espirit de corps” or “mutual responsibility.” It has a negative connotation. Krugovaya poruka is one of the defining features of a mafia state.Yeltsin appointed Putin as a successor during the scandal that involved covering up corruption and using kompromat. Putin’s role was to prevent the future investigation into Yeltsin’s corruption.The typical steps towards silencing and suppressing criminal investigation involve:

→ The strategic hires block trials.→ Through bribes, blackmail and murder, any investigation is silenced and stopped.→ The public opinion is formed by the press working for the government.→ Independent journalists and investigators are killed or exiled.

Trump is following this pattern by nominating Kavanaugh, Benczkowski, and other key positions in DOJ and national security agencies. The timeline of Kavanaugh’s nomination shows the Kremlin-linked agency involvement. A Russian oligarch with close links to Putin appears throughout the thirty years of international organized crime operations.

WHY KAVANAUGH?

Below is a timeline of events that lead to Brett Kavanaugh’s nomination. Trump nominated Kavanaugh soon after he was quoted nine times in a motion filed by the lawyers of a Russian firm indicted by the special counsel for interfering in the US elections. The firm has close connections to Putin.

1.2. KAVANAUGH — RUSSIAN TROLL FACTORY — “PUTIN’S CHEF”

PUTIN’S COOK’S COMPANY IS INDICTED BY MUELLER

On February 16, 2018, special counsel Mueller indicted a Russian company Concord Management and Consulting LLC, two other Russian companies, and 13 Russian individuals, accusing them of illegally interfering in the 2016 U.S. presidential election.According to the indictment, Concord failed to register as a foreign agent, failed to make required disclosures to the Federal Election Commission, and made false statements to secure fraudulent visas.Concord Management and Consulting LLC is a Saint Petersburg-based business said to be controlled by Yevgeny Prigozhin, the Kremlin’s official caterer, and Putin’s long-term friend with ties to Russian intelligence.PUTIN’S COOK’S COMPANY QUOTES KAVANAUGH WHILE FILING A MOTION TO DISMISS MUELLER’S INDICTMENTOn May 14, 2018, attorneys for Concord filed a motion to dismiss and proposed dismissal order with the court on which Judge Kavanaugh currently sits, the U.S. District Court for the District of Columbia, citing Kavanaugh nine times.In a memo accompanying the motion and proposed order, Judge Kavanaugh is referenced nine times in total, to argue that the charges against Concord should be dropped. Below is a detailed analysis of all nine quotes.

One of the Russian companies indicted by special counsel Robert Mueller for its alleged involvement in a troll farm scheme has littered a recent motion to dismiss with a number of citations to President Donald Trump‘s Supreme Court nominee, U.S. Appellate Judge Brett Kavanaugh.

On Monday, attorneys for Concord Management and Consulting LLC filed a 295-page motion to dismiss and proposed dismissal order (along with numerous pages of supporting documentation) with the U.S. District Court for the District of Columbia–the court on which Judge Kavanaugh currently sits.

In a lengthy memo accompanying the motion and proposed order, Judge Kavanaugh is referenced nine times in total.

The first Kavanaugh reference comes by way of the case stylized as Bluman v. Fed. Election Comm’n. This case ultimately narrowed the scope of the ban on foreign nationals to exclude “issue advocacy.” Kavanaugh wrote [emphasis in original]:

“[W]e caution the government that seeking criminal penalties for violations of [laws regulating foreign nationals’ political contributions or expenditures] will require proof of defendant’s knowledge of the law…There are many aliens in this country who no doubt are unaware of the statutory ban on foreign expenditures…

As Campaign Legal Center’s Brendan Fischer noted, Kavanaugh’s opinion did some very heavy lifting to narrow said scope:

The second and third Kavanaugh references come by way of Concord Management’s argument that the special counsel lacks any statutory authority to charge the company with conspiracy. Before citing to the above language from Kavanaugh, the motion to dismiss notes:

There is, however, no basis to charge anyone, including a foreign national, as a co-conspirator without a wrongful intent to engage in unlawful conduct specified in some statutory or regulatory scheme. Yet that is exactly what the Special Counsel is attempting here, evoking Judge Kavanaugh’s admonition, in speaking for this Court in Bluman…

The fourth Kavanaugh reference again cites to the judge’s decision in the Bluman case. This time, however, Concord Management discusses the Department of Justice’s “Guidelines for Federal Prosecution of Election Offenses.” According to their argument, these guidelines “require proof” that defendants charged under the federal conspiracy to defraud statute acted with “the awareness of unlawfulness.” The motion notes, before quoting the first-referenced Kavanaugh language once again:

The Guidelines are, moreover, consistent with Judge Kavanaugh’s opinions in Bluman and Moore…”[W]e caution the government that seeking criminal penalties for violations of [laws regulating foreign nationals’ political contributions or expenditures] will require proof of defendant’s knowledge of the law.”

The fifth Kavanaugh reference is also made in service of the federal guidelines argument. In this instance, the motion cites Kavanaugh’s opinion in the case stylized as United States v. Moore. This case concerned a man who “knowingly and willfully” signed a false name on a Postal Service delivery form.

Judge Kavanaugh’s concurrence is a lengthy discussion on the potential for “abuse and injustice” to arise from prosecutorial use of 18 U.S.C. § 1001. Concord Management cites to the following language in said concurrence:

[T]he Supreme Court’s precedents arguably require district courts in § 1001 cases to give a willfulness instruction that requires proof that the defendant knew his conduct was a crime.

The sixth Kavanaugh reference cites the exact language taken from Moore above, with a slight addition. The citation reads, “the Supreme Court’s precedents arguably require district courts in [18 U.S.C.] § 1001 cases to give a willfulness instruction that requires proof that the defendant knew his conduct was a crime.”

The seventh, eighth and ninth Kavanaugh references are dropped into footnote 13 on page 31 of the accompanying memo. This footnote briefly discusses Kavanaugh’s suggestion that a prior ruling may need to be reconsidered in light of later precedent. The ruling in question concerns the case stylized as United States v. Hsia. The motion notes the outcome of this case:

[T]he D.C. Circuit reversed the dismissal of the five substantive counts for making false statements in violation of 18 U.S.C. §§ 2 and 1001, concluding that under those provisions, “the government need not prove that Hsia knew her acts to be unlawful.” Rather, the court found, the government need only show that the defendant knew that the statements were false and the defendant intentionally caused the statements to be made by another.

This would seemingly be a reference that doesn’t quite bode well for Concord Management. But the footnote posits that, once again, it’s Judge Kavanaugh to the rescue of the alleged Russian trolls. The footnote reads, in full:

Even this finding, beside the point in this § 371 case, is on shaky ground, as Judge Kavanaugh pointed out in Moore, 612 F.3d at 704 (Kavanaugh, J., concurring) (noting that “Hsia referenced a 1994 Third Circuit opinion [Curran] that predated the Supreme Court’s clarifying decisions in Bryan and later cases,” and that, as a result, Hsia’s mens rea ruling may need to be reconsidered). Judge Kavanaugh went on to say that “in a case where the issue is raised, the Supreme Court’s precedents arguably require district courts in § 1001 cases to give a willfulness instruction that requires proof that the defendant knew his conduct was a crime.”

In other words, Concord Management’s final invocation of Kavanaugh is a reference to the judge’s opinion that the bar for violating the materially false statements statute is now exceedingly high. It’s easy enough to see why Judge Kavanaugh’s words here offer the defendants more than a little bit of comfort.

Concord, in particular, noted that Kavanaugh warned the government in a 2011 court decision that in order to charge foreigners with violating laws about political contributions, the government first must prove that those foreigners knew that they were breaking the laws.Bluman v. Federal Election Com’n., 800 F. Supp. 2d 281 — CourtListener.com

Plaintiffs are foreign citizens who temporarily live and work in the United States. They are neither U.S. citizens nor lawful permanent residents; rather, they are lawfully in the United States on temporary work visas. Although they are not U.S. citizens and are in this country only temporarily, plaintiffs want to participate in the U.S. campaign process. They seek to donate money to candidates in U.S. federal and state elections, to contribute to national political parties and outside political groups, and to make expenditures expressly advocating for and against the *283 election of candidates in U.S. elections. Plaintiffs are barred from doing so, however, by federal statute. See 2 U.S.C. § 441e(a).

In this suit, plaintiffs argue that the federal ban on their proposed activities is unconstitutional. Plaintiffs contend, in particular, that foreign citizens lawfully resident in the United States have a right under the First Amendment to the United States Constitution to contribute to candidates and political parties and to make express-advocacy expenditures. We respect the force of plaintiffs' arguments, as ably advanced by plaintiffs' counsel. Under the relevant Supreme Court precedents, however, we must disagree with plaintiffs' submission. The Supreme Court has long held that the government (federal, state, and local) may exclude foreign citizens from activities that are part of democratic self-government in the United States. For example, the Supreme Court has ruled that the government may bar aliens from voting, serving as jurors, working as police or probation officers, or teaching at public schools. Under those precedents, the federal ban at issue here readily passes constitutional muster. We therefore grant the FEC's motion to dismiss plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6), and we deny plaintiffs' motion for summary judgment.[1]

LEGAL BACKGROUND

As political campaigns grew more expensive in the latter half of the 20th Century, especially with the advent of costly television advertising, money became more important to the campaign processin terms of both contributions to candidates and political parties and expenditures advocating for or against candidates. As money became more important to the election process, concern grew that foreign entities and citizens might try to influence the outcome of U.S. elections. In 1966, Congress sought to limit foreign influence over American elections by prohibiting agents of foreign governments and entities from making contributions to candidates. See Pub.L. No. 89-486, § 8, 80 Stat. 244, 248-49 (1966). In 1974, Congress expanded that ban and barred contributions to candidates from all "foreign nationals," defined as all foreign citizens except lawful permanent residents of the United States. See Federal Election Campaign Act Amendments of 1974, Pub, L. No. 93-443, § 101(d), 88 Stat. 1263, 1267.

But those restrictions did not eliminate the possibility of foreign citizens influencing American elections by, for example, soft-money donations to political parties as opposed to direct contributions to candidates. Activities by foreign citizens in the 1996 election cycle sparked public controversy and an extensive investigation by the Senate Committee on Governmental Affairs. The Committee found that foreign citizens had used soft-money contributions to political parties to essentially buy access to American political officials. See S.REP. No. 105-167, at 781-2710, XXXX-XXXX (1998). It also found that the Chinese government had made an effort to "influence U.S. policies and elections through, among other means, financing election campaigns." Id. at 47; see also id. at 2501-12.

*284 In response, Congress eventually passed and President George W. Bush signed legislation that, among many other things, strengthened the prohibition on foreign financial involvement in American elections. See Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107-155, § 303, 116 Stat. 81, 96. This new Act expanded the ban on foreign nationals' financial influence on elections by banning foreign nationals both from making expenditures and from making contributions to political parties, thus supplementing the pre-existing ban on foreign nationals making contributions to candidates.

The relevant provision of the statute as amended in 2002 reads:

(a) ProhibitionIt shall be unlawful for

(1) a foreign national, directly or indirectly, to make(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;(B) a contribution or donation to a committee of a political party; or(C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 434(f)(3) of this title); or(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.2 U.S.C. § 441e(a).[2] The statute continues to define "foreign national" to include all foreign citizens except those who have been admitted as lawful permanent residents. Id. § 441e(b).

As relevant here, we interpret the statute to bar foreign nationalsthat is, all foreign citizens except those who have been admitted as lawful permanent residents of the United Statesfrom contributing to candidates or political parties; from making expenditures to expressly advocate the election or defeat of a political candidate; and from making donations to outside groups when those donations in turn would be used to make contributions to candidates or parties or to finance express-advocacy expenditures. See generally FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007); Emily's List v. FEC, 581 F.3d 1 (D.C.Cir.2009). This statute, as we interpret it, does not bar foreign nationals from issue advocacythat is, speech that does not expressly advocate the election or defeat of a specific candidate. The line between prohibited express-advocacy expenditures and permitted issue-advocacy expenditures for purposes of this statute is the line drawn by the Supreme Court in Wisconsin Right to Life: An express-advocacy expenditure is one that funds "express campaign speech" or its "functional equivalent." 551 U.S. at 456, 127 S.Ct. *285 2652 (controlling opinion of Roberts, C.J.). An advertisement is the "functional equivalent" of express advocacy if it "is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Id. at 469-70, 127 S. Ct. 2652.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs in this suitBenjamin Bluman and Asenath Steimanare foreign citizens who live and work in the United States on temporary visas. Bluman is a Canadian citizen who has lawfully resided in the United States since November 2009 on a temporary work visa. From September 2006 to June 2009, he lawfully resided in the United States on a temporary student visa while attending law school. His current visa will allow him to stay in the country until November 2012, at which time he plans to apply for a second three-year term. He is an associate at a law firm in New York City.

Bluman wants to contribute to three candidates: Representative Jay Inslee of Washington; Diane Savino, a New York state senator; and President Obama. He also wants to print flyers supporting President Obama's reelection and to distribute them in Central Park.

Steiman is a dual citizen of Canada and Israel. She has a temporary visa authorizing her to live and work in the United States for a period of three years, through June 2012, but that term could be extended for up to seven years. She is a medical resident at a hospital in New York.

Steiman wants to contribute money to Senator Tom Coburn; a yet-to-be-determined candidate for the Republican nomination for President in 2012; the National Republican Senatorial Committee; and the Club for Growth, an independent organization that advocates with respect to certain issues and candidates.

All of plaintiffs' desired activities are barred by 2 U.S.C. § 441e(a) as amended in 2002.

Plaintiffs filed this complaint alleging that the statutory bar on their proposed activities violates the First Amendment to the United States Constitution. The Federal Election Commission moved to dismiss the suit for failure to state a claim. See FED.R.CIV.P. 12(b)(6). Plaintiffs moved for summary judgment.

DISCUSSION

I. Standard of Scrutiny

Political contributions and expenditures are acts of political expression and association protected by the First Amendment. According to plaintiffs, regulation of those activities therefore must meet First Amendment strict scrutiny standards. See Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). The FEC counters that § 441e(a) manifests a congressional judgment on a matter of foreign affairs and national security, and is thus subject to deferential rational basis review. We think the question is somewhat more complex than either side suggests, not only because the statute implicates both the First Amendment and national security, but also because it includes both a limit on contributions and a limit on expenditures, which have traditionally been subject to different levels of First Amendment scrutiny. See McConnell v. FEC, 540 U.S. 93, 134-37, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003); Buckley, 424 U.S. at 20-23, 44-45, 96 S. Ct. 612. But the debate over the level of scrutiny is ultimately not decisive here because we conclude that § 441e(a) passes muster even under strict scrutiny. Therefore, we may assume for the sake of argument that *286 § 441e(a)'s ban on political contributions and expenditures by foreign nationals is subject to strict scrutiny.

Over the last four decades, the First Amendment issues raised by campaign finance laws have been the subject of great debates involving all three branches of the national government. See, e.g., Citizens United v. FEC, ___ U.S. ___, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010); Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). This case does not implicate those debates. Rather, this case raises a preliminary and foundational question about the definition of the American political community and, in particular, the role of foreign citizens in the U.S. electoral process.

But we also know from Supreme Court case law that foreign citizens may be denied certain rights and privileges that U.S. citizens possess. For example, the Court has ruled that government may bar foreign citizens from voting, serving as jurors, working as police or probation officers, or working as public school teachers. See Cabell v. Chavez-Salido, 454 U.S. 432, 102 S. Ct. 735, 70 L. Ed. 2d 677 (1982) (upholding a law barring foreign citizens from working as probation officers); Ambach v. Norwick, 441 U.S. 68, 99 S. Ct. 1589, 60 L. Ed. 2d 49 (1979) (upholding a law barring foreign citizens from teaching in public schools unless they intend to apply for citizenship); Foley v. Connelie, 435 U.S. 291, 98 S. Ct. 1067, 55 L. Ed. 2d 287 (1978) (upholding a law barring foreign citizens from serving as police officers); Perkins v. Smith, 370 F. Supp. 134 (D.Md.1974), aff'd 426 U.S. 913, 96 S. Ct. 2616, 49 L. Ed. 2d 368 (1976) (upholding a law barring foreign citizens from serving as jurors); Sugarman, 413 U.S. at 648-49, 93 S. Ct. 2842 ("citizenship is a permissible criterion for limiting" the "right to vote or to hold high public office"). The Court has further indicated that aliens' First Amendment rights might be less robust than those of citizens in certain discrete areas. See Harisiades v. Shaughnessy, 342 U.S. 580, 591-92, 72 S. Ct. 512, 96 L. Ed. 586 (1952) (First Amendment does not protect aliens from deportation because of membership in the Communist Party). Beyond that, the Constitution itself of course bars foreign citizens from holding certain offices. See U.S. CONST, art. I, §§ 2, 3; U.S. CONST. art. II, § 1.

In those many decisions, the Supreme Court has drawn a fairly clear line: The government may exclude foreign citizens from activities "intimately related to the process of democratic self-government." Bernal v. Fainter, 467 U.S. 216, 220, 104 S. Ct. 2312; 81 L. Ed. 2d 175 (1984); see also Gregory v. Ashcroft, 501 U.S. 452, 462, 111 S. Ct. 2395, 115 L. Ed. 2d 410 (1991); Cabell, 454 U.S. at 439-40, 102 S. Ct. 735. As the Court has written, "a State's historical power to exclude aliens from participation in its democratic political institutions [is] part of the sovereign's obligation to preserve the basic conception of a political community." Foley, 435 U.S. at 295-96, 98 S. Ct. 1067 (internal quotation marks and citation omitted). In other words, the government may reserve "participation in its democratic political institutions" for citizens of this country. Id. When reviewing a statute barring foreign citizens from serving as probation officers, the Court explained that the "exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of political self-definition." Cabell, 454 U.S. at 439, 102 S. Ct. 735 (emphasis added). Upholding a statute barring aliens from teaching in public schools, the Court reasoned that the "distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and *288 government of a State.... It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens." Ambach, 441 U.S. at 75, 99 S. Ct. 1589 (emphasis added). And in upholding a ban on aliens serving as police officers, the Court stated that, "although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens." Foley, 435 U.S. at 297, 98 S. Ct. 1067.

We read these cases to set forth a straightforward principle: It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government. It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.

Applying the Supreme Court's precedents, the question here is whether political contributions and express-advocacy expendituresincluding donations to outside groups that in turn make contributions or express-advocacy expenditures, see Emily's List v. FEC, 581 F.3d 1 (D.C.Cir.2009)constitute part of the process of democratic self-government. In our view, the answer to that question is straightforward: Political contributions and express-advocacy expenditures are an integral aspect of the process by which Americans elect officials to federal, state, and local government offices. Political contributions and express-advocacy expenditures finance advertisements, get-out-the-vote drives, rallies, candidate speeches, and the myriad other activities by which candidates appeal to potential voters. See generally Buckley, 424 U.S. at 14, 96 S. Ct. 612. We think it evident that those campaign activities are part of the overall process of democratic self-government. Moreover, it is undisputed that the government may bar foreign citizens from voting and serving as elected officers. See Sugarman, 413 U.S. at 647-49, 93 S. Ct. 2842. It follows that the government may bar foreign citizens (at least those who are not lawful permanent residents of the United States) from participating in the campaign process that seeks to influence how voters will cast their ballots in the elections. Those limitations on the activities of foreign citizens are of a piece and are all "part of the sovereign's obligation to preserve the basic conception of a political community." Foley, 435 U.S. at 295-96, 98 S. Ct. 1067 (internal quotation marks omitted).[3]

Our task here is made simpler because the Supreme Court has deemed the activities of democratic self-government to include functions as unrelated to the electoral process as teaching in public schools and serving as police and probation officers. See Cabell, 454 U.S. at 444-47, 102 S. Ct. 735; Ambach, 441 U.S. at 75-81, 99 S. Ct. 1589; Foley, 435 U.S. at 297-300, 98 S. Ct. 1067. In our view, spending money to *289 influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher. Thus, our conclusion here follows almost a fortiori from those cases.

For their part, plaintiffs concede that the government may bar foreign citizens abroad from making contributions or express-advocacy expenditures in U.S. elections. They thus concede that the government may make distinctions based on the foreign identity of the speaker when the speaker is abroad. Plaintiffs contend, however, that the government may not impose the same restrictions on foreign citizens who are lawfully present in the United States on a temporary visa. We disagree.

Although the Supreme Court has never squarely addressed the issue presented in this case, the only four justices who spoke to the question in Citizens United indicated that the government obviously has the power to bar foreign nationals from making campaign contributions and expenditures. Justice Stevens wrote for those four justices:

The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.... Although we have not reviewed them directly, we have never cast doubt on laws that place special restrictions on campaign spending by foreign nationals. See, e.g., 2 U.S.C. § 441e(a)(3).... The Court all but confesses that a categorical approach to speaker identity is untenable when it acknowledges that Congress might be allowed to take measures aimed at "preventing foreign individuals or associations from influencing our Nation's political process." Ante, at 911 [130 S. Ct. 876]. Such measures have been a part of U.S. campaign finance law for many years. The notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers, whose obsession with foreign influence derived from a fear that foreign powers and individuals had no basic investment in the well-being of the country.Citizens United, 130 S.Ct. at 945, 947, 948 n. 51, 130 S. Ct. 876 (Stevens, J., joined by Ginsburg, Breyer, and Sotomayor, JJ., concurring in part and dissenting in part) (internal quotation marks and footnotes omitted). For Justices Stevens, Ginsburg, Breyer, and Sotomayor, it was plainindeed, beyond rational debatethat the government may bar foreign contributions and expenditures. To be sure, the other five Justices did not have occasion to expressly address this issue in Citizens United, but the majority's analysis in Citizens United certainly was not in conflict with Justice Stevens's conclusion on this particular question about foreign influence. Indeed, in our view, the majority opinion in Citizens United is entirely consistent with a ban on foreign contributions and expenditures. And we find the force of Justice Stevens's statement to be a telling and accurate indicator of where the Supreme Court's jurisprudence stands on the question of foreign contributions and expenditures.

Plaintiffs try in various ways to overcome the relevant Supreme Court precedents. First, they acknowledge that they do not have the right to vote in U.S. elections, but they contend that the right to speak about elections is different from the right to participate in elections. But in this case, that is not a clear dichotomy. When an expressive act is directly targeted at influencing the outcome of an election, it is both speech and participation in democratic self-government. Spending *290 money to contribute to a candidate or party or to expressly advocate for or against the election of a political candidate is participating in the process of democratic self-government. Notably, § 441e(a) as we interpret it, see supra pp. 284-85, does not restrain foreign nationals from speaking out about issues or spending money to advocate their views about issues. It restrains them only from a certain form of expressive activity closely tied to the voting processproviding money for a candidate or political party or spending money in order to expressly advocate for or against the election of a candidate. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 788 n. 26, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978) ("speak[ing] on issues of general public interest" is a "quite different context" from "participation in a political campaign for election to public office").

Plaintiffs further contend that § 441e(a)'s restrictions on contributions and expenditures cannot be justified by the longstanding ban on foreign citizens voting in U.S. elections because the statutory restrictions here are not tied to the right to vote. But that argument misunderstands the compelling interest that is at stake. The statute does not serve a compelling interest in limiting the participation of non-voters in the activities of democratic self-government; it serves the compelling interest of limiting the participation of non-Americans in the activities of democratic self-government. A statute that excludes foreign nationals from political spending is therefore tailored to achieve that compelling interest.

Plaintiffs also point out that many groups of people who are not entitled to vote may nonetheless make contributions and expenditures related to electionsfor example, minors, American corporations, and citizens of states or municipalities other than the state or municipality of the elective office. But minors, American corporations, and citizens of other states and municipalities are all members of the American political community. By contrast, the Supreme Court has said that "[a] liens are by definition those outside of this community." Cabell, 454 U.S. at 439-40, 102 S. Ct. 735. The compelling interest that justifies Congress in restraining foreign nationals' participation in American electionsnamely, preventing foreign influence over the U.S. governmentdoes not apply equally to minors, corporations, and citizens of other states and municipalities. It is long established that the government's legislative and regulatory prerogatives are at their apex in matters pertaining to alienage. See Mathews, 426 U.S. at 79-80, 96 S. Ct. 1883; Harisiades, 342 U.S. at 588-89, 72 S. Ct. 512. It is hardly surprising, therefore, that a law that is justified as applied to aliens may not be justified as applied to citizens of the United States, or entities made up of such citizens. Thus, the fact that those other non-voting groups of U.S. citizens are free to contribute and make expenditures does not mean that foreign nationals are similarly entitled.

Plaintiffs argue that the statute, as a measure designed to limit foreign influence over American self-government, is underinclusive and not narrowly tailored because it does not prohibit contributions and expenditures by lawful permanent residents. But as Members of Congress stated when rejecting a proposal to include lawful permanent residents in § 441e(a)'s prohibition, see, e.g., 148 Cong. Rec. H448-H450 (Feb. 13, 2002) (statements of Reps. Mink, Menendez, Reyes, Morella, and Solis), Congress may reasonably conclude that lawful permanent residents of the United States stand in a different relationship to the American political community than *291 other foreign citizens do. Lawful permanent residents have a long-term stake in the flourishing of American society, whereas temporary resident foreign citizens by definition have only a short-term interest in the national community. Indeed, at oral argument in this case, plaintiffs' counsel could not say that the two plaintiffs here ever want to become U.S. citizens, or to apply for lawful permanent residency. See Tr. of Oral Arg. at 19. Temporary resident foreign citizens by definition have primary loyalty to other national political communities, many of which have interests that compete with those of the United States. Apart from that, lawful permanent residents share important rights and obligations with citizens; for example, lawful permanent residents mayand do, in large numbersserve in the United States military. In those two waystheir indefinite residence in the United States and their eligibility for military servicelawful permanent residents can be viewed as more similar to citizens than they are to temporary visitors, and thus Congress's decision to exclude them from the ban on foreign nationals' contributions and expenditures does not render the statute underinclusive. In fact, one might argue that Congress's carve-out for lawful permanent residents makes the statute more narrowly tailored to the precise interest that it is designed to servenamely, minimizing foreign participation in and influence over American self-government.

Plaintiffs further contend that the statute is underinclusive and not narrowly tailored because it permits foreign nationals to make contributions and expenditures related to ballot initiatives. But as the Supreme Court has stated, Congress may proceed piecemeal in an area such as this involving distinctions between citizens and aliens. See Buckley, 424 U.S. at 105, 96 S. Ct. 612 (noting the "familiar principles that a statute is not invalid under the Constitution because it might have gone farther than it did, that a legislature need not strike at all evils at the same time, and that reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind") (internal quotations marks and citations omitted); Mathews, 426 U.S. at 82-84, 96 S. Ct. 1883 ("Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others.... When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment."). Moreover, Congress could reasonably conclude that the risk of undue foreign influence is greater in the context of candidate elections than it is in the case of ballot initiatives. Cf. Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 299, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981). Congress's determination that foreign contributions and expenditures pose a greater risk in relation to candidate elections than such activities pose in relation to ballot initiatives is a sensible one and, in our view, does not undermine the validity of the statutory ban on contributions and expenditures.

Plaintiffs also suggest that Congress's ban on foreign participation in the campaign process is the product of jingoistic sentiment in the United States Congress and thus should not be accepted by the courts. To begin with, Congress's most recent legislation on this issue was based on a factual record collected in the aftermath of the 1996 elections and Congress's genuine concern about foreign influences *292 on U.S. elections. It bears mentioning, moreover, that plaintiffs' home countries Israel and Canadaand many other democratic countries impose similar restraints on political spending by foreign citizens. See, e.g., Canada Elections Act, 2000 S.C., c. 9 §§ 358, 404(1); Knesset Election Law (Consolidated Version), XXXX-XXXX, 23 LSI 110 (XXXX-XXXX/69), as amended; see also Tr. of Oral Arg. at 56-57. To be sure, the United States protects speech and expression more than most (perhaps more than all) foreign countries do, and U.S. courts should not be bound by foreign nations' practices when analyzing constitutional issues such as this. But as the examples of Canada and Israel help show, distinguishing citizens from non-citizens in this context is hardly unusual or deserving of scorn; rather, it is part of a common international understanding of the meaning of sovereignty and shared concern about foreign influence over elections.

For all of those reasons, we are ultimately unpersuaded by plaintiffs' submission.[4] That said, we note three important limits to our holding in this case. First, we do not here decide whether Congress could constitutionally extend the current statutory ban to lawful permanent residents who have a more significant attachment to the United States than the temporary resident plaintiffs in this case. Any such extension would raise substantial questions not raised by this case. Second, we do not decide whether Congress could prohibit foreign nationals from engaging in speech other than contributions to candidates and parties, express-advocacy expenditures, and donations to outside groups to be used for contributions to candidates and parties and express-advocacy expenditures. Plaintiffs express concern, for example, that a ruling against them here would green-light Congress to impose bans on lobbying by aliens temporarily in this country. They similarly express concern that Congress might bar them from issue advocacy and speaking out on issues of public policy. Our holding does not address such questions, and our holding should not be read to support such bans. Third, we caution the government that seeking criminal penalties for violations of this provisionwhich requires that the defendant act "willfully," see 2 U.S.C. §§ 437g(a)(5)(C), 437g(d)(l)(A)will require proof of the defendant's knowledge of the law. See United States v. Moore, 612 F.3d 698, 702-04 (D.C.Cir.2010) (Kavanaugh, J., concurring); see also Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994). There are many aliens in this country who no doubt are unaware of the statutory ban on foreign expenditures, in particular.

CONCLUSION

We grant the FEC's motion to dismiss, and we deny plaintiffs' motion for summary judgment.

NOTES

[1] In this opinion, we follow Supreme Court practice and use the terms "foreign citizen" and "alien" interchangeably to refer to individuals who are not citizens of the United States, As we use them here, those terms do not include individuals who are dual citizens of a foreign country and the United States. The term "foreign national" is a statutory term of art and has a narrower scope: It covers foreign citizens except for lawful permanent residents of the United States. See 2 U.S.C. § 441e(b).

[2] The statute as amended defines "contribution" as "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office" or "the payment by any person of compensation for the personal services of another person which are rendered to a political committee without charge for any purpose." 2 U.S.C. § 431(8)(A). The statute as amended defines "expenditure" as "any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office" or any "written contract, promise, or agreement to make an expenditure." Id. § 431(9)(A). An "independent expenditure" is "an expenditure by a person ... expressly advocating the election or defeat of a clearly identified candidate" that is not made in coordination with that candidate. Id. § 431(17).

[3] We note that plaintiffs have not attempted to argue as a backup that they may have a right to make expenditures even if they do not have a right to make contributions. We think that a wise approach. The constitutional distinction between contributions and expenditures is based on the government's anti-corruption interest. See Buckley, 424 U.S. at 45-47, 96 S. Ct. 612. But that is not the governmental interest at stake in this case. Here, the government's interest is in preventing foreign influence over U.S. elections.

[4] Our holding means, of course, that foreign corporations are likewise barred from making contributions and expenditures prohibited by 2 U.S.C. § 441e(a). Because this case concerns individuals, we have no occasion to analyze the circumstances under which a corporation may be considered a foreign corporation for purposes of First Amendment analysis.https://www.courtlistener.com/opinion/2 ... tion-comn/

Concord lawyers used the argument that the special counsel lacked any statutory authority to charge the company with conspiracy.

On June 8, 2018, lawyers for Concord filed another document, calling special counsel “unlawfully appointed.”

NEXT, TRUMP NOMINATES KAVANAUGH TO THE SUPREME COURT OF THE US

On June 27, 2018, Justice Anthony Kennedy announced his retirement.

On July 9, 2018, Trump announced that he selected Brett Kavanaugh to become an Associate Justice of the Supreme Court of the United States filling the vacancy left by the retirement Kennedy.

1.3. KAVANAUGH IN FAVOR OF NIXON: “WRONGLY DECIDED”

In addition, Trump nominated Kavanaugh to the Supreme Court because Kavanaugh had stated that he did not believe sitting presidents should be indicted or even subject to civil suits.In 1999, then US Supreme Court nominee Brett Kavanaugh said that the Supreme Court opinion ordering Nixon to turn over White House recordings during the Watergate investigation might have been “wrongly decided.” “Trump believes Kavanaugh would serve as a “barrier” should the inquiry end up before the supreme court,” wrote Bobbie Stein, a member of the board of governors of California Attorneys for Criminal Justice.“But maybe Nixon was wrongly decided — heresy though it is to say so,” said Kavanaugh. The case “took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official.”

2. WHO IS BRIAN BENCZKOWSKI?

Brian Benczkowski is a Trump’s pick for the DOJ criminal division lead, one of the most significant pieces of the Justice Department overseeing 600 prosecutors,BENCZKOWSKI IS CONNECTED TO A RUSSIAN BANK CLOSE TO PUTINBenczkowski, a Kirkland & Ellis partner, has never tried a case in court but worked for Alfa Bank, owned by Mikhail Fridman and Peter Aven, oligarchs with long-term and close ties to Putin.In 2016, he helped Alfa Bank investigate whether its computer servers had contacted the Trump Organization.TRUMP NOMINATES BENCZKOWSKIIn June 2017, Trump nominated Benczkowski for the DOJ Criminal department position despite the fact that he didn’t have enough work experience.On July 11, 2018, Benczkowski was confirmed by the Senate.Benczkowski refused to recuse himself from the Russian investigation.Sen. Dianne Feinstein said that Benczkowski’s nomination “presents glaring conflicts of interest” with regard to special counsel Robert Mueller’s investigation into Russia meddling in the 2016 election.

ALFA BANK HAS MULTIPLE CONNECTIONS TO PUTIN AND TRUMP

Alfa Bank has multiple connections to Trump’s circle. Below are some of these ties; read more here.

ALFA BANK — KING AND SPALDING — FBI DIRECTOR

The FBI Director Chris Wray, nominated by Trump after firing of James Comey, worked for the firm King and Spalding that represented Alfa Bank and Sberbank on the issues related to sanctions, Gazprom, and Rosneft. Read the detailed report here.

ALFA BANK — BETSY DEVOS

In 2014, Alfa Bank formed a partnership program with Amway, a company owned by DeVos family.

ALFA BANK — RICHARD BURT — TRUMP’S FIRST POLICY SPEECHIn April 2016, Richard Burt, a former member of the senior advisory board of Alfa Bank and currently a Board member of Letter One, helped to draft Trump’s first policy speech at The National Interest.

ALFA GROUP HAS A CONNECTION TO CAMBRIDGE ANALYTICA

Robert Mercer’s funds bought US-listed shares of 2 Russian telecommunications firms with significant operations in Russia and Ukraine, including VimpelCom (VIP), an affiliate of Alfa Bank, founded by Fridmanand Aven.Mercer also invested about $5 million in Cambridge Analytica and owns 90% of Cambridge Analytica.

ALFA BANK AND PUTIN

Ilya Zaslavsky, a Russian-American political analyst, has authored a detailed and complete work following the connections of its owners to Putin.

Mikhail Fridman, Pyotr Aven, German Khan, and their connections to the Kremlin and the FSB

Research note prepared by Ilya Zaslavskiy

All the points below suggest strongly that Aven, Fridman and other key Alfa Bank oligarchs are close cronies and insiders of Vladimir Putin’s regime, and do not operate independently of Putin’s demands.

1. Aven shielded Putin from criminal investigation in 1992.

- When Aven was the Minister of Foreign Economic Relations, he helped Putin, then deputy mayor of St. Petersburg, to cover up his criminal activity on the export of rare commodities (Marina Salye dossier)

- In 1993, according to Karen Dawisha's book, Putin’s Kleptocracy, Kroll Associates wrote monthly reports to Yeltsin and its final report was presented to the Supreme Soviet in September 1993. Direct quote: "the document recounted widespread instances of "bribery of officials, blackmail, and the illegal transfer of currency resources to foreign banks", including by Minister Petr Aven." (quote on p. 19).

2. The corporate raiding of TNK-BP in 2008-2009 with the help of the FSB. Unresolved question of who benefited from the poisoning of CEO Robert Dudley, a U.S. national, copying of government documents from Russia and Ukraine, facilitation of fabrication of fake spy case.

4. In 2012-2013 Putin personally managed and approved a deal of the sale of TNK-BP to Rosneft, the largest corporate deal in Russian history. This deal saw an unexplained 50% premium to the market price (around $10bn) to AAR shareholders, which they quickly moved to the West. This was just nine months before the annexation of Crimea and done through offshore accounts. This money is now being used to advance major investments in the West via Letter One and other entities in the US, UK and Europe at large despite financial sanctions and restrictions on other Kremlin-connected capital from other oligarchs. Somehow Alfa oligarchs managed to continue their investments in the West.

- The dossier of Christopher Steele (“the Trump Dossier”) claims that Alfa and Putin have kompromat on each other and are closely connected to each other before Putin even came to power (Karen Dawisha’s investigations showed that years ago). As U.S. media has shown, large parts of the dossier have been corroborated as truthful by independent third-party investigations. Alfa oligarchs are now in litigation against media and GPS Fusion over these allegations.

- In addition, there is an unresolved question of whether the Trump Organization and Alfa Bank maintained a secret back-channel; CNN believes that this remains a matter for further investigation.

6. Alfa’s special interests and connections in the Middle East date way back.

- In 2005, an independent US inquiry found Russian politicians and companies heavily involved in abuses of the UN's oil-for-food program in Iraq. The final report of the commission, chaired by former U.S. Federal Reserve Chairman Paul Volcker, found that among the companies making such payments were Alfa Eco, an affiliate of the Alfa Bank, where Aven was the top executive. http://www.rferl.org/content/article/1062481.html

7. Alfa’s role in money laundering in the Sergei Magnitsky case, and bribes to Shuvalov have not yet been examined properly. Alfa and its affiliates have also been kept under investigation by the Spanish Attorney General for alleged links with organized crime and money laundering.

Mikhail Fridman, Pyotr Aven, German Khan, and their connections to the Kremlin and the FSB

Research note prepared by Ilya Zaslavskiy All the points below suggest strongly that Aven, Fridman and other key Alfa…http://www.underminers.infoPETR AVEN OF ALFA BANK SILENCED AN INVESTIGATION INTO PUTIN’S CRIMES IN ST. PETERSBURG IN THE 90sPetr Aven, one of three owners of Alfa Bank, played a major role in silencing the investigation of Putin’s crimes in St. Petersburg in the early 1990s. The investigation was similar to Mueller’s. Its suppression led to Putin being in power for eighteen years.

FOOD SUPPLIES DISAPPEAR FROM ST. PETERSRBURG

In 1992, a big scandal involving Putin and Petr Aven shook St. Petersburg.The Soviet Union had just collapsed and the city suffered food shortages due to the poor economy and dysfunctional distribution system. The situation was emotionally trying as the city had suffered 1.5 million deaths due to starvation during the Siege of Leningrad forty-five years prior to this event. In other words, my parents’ generation lived — and many died — through four years of hunger. Cutting the food supplies to this city evoked the panic.

ONE HUNDRED AND TWENTY TWO MILLION DOLLARS MISSING

The government came up with an idea of exchanging Russian raw materials like oil products, timber and lumber, metals, ammonia and concrete for the Western food supplies.The city authorities ended up exporting the raw products without importing the food supplies. The city was left without food during a cold winter. I lived in St.Petersburg at the time and witnessed standing in line for hours, empty shelves and food ration cards.INVESTIGATION LEADS TO PUTIN AND AVEN

The People’s Deputies committee and its chairwoman, Marina Salye, investigated the matter.It alleged that the Mayor of the city Anatoly Sobchak, Putin, Petr Aven, and the St. Petersburg government entered into contracts with dubious shell companies and appropriated the money.The barters required issuing licenses to export companies. According to the investigation, Putin, Chairman of the Committee for External Relations of the City Hall at the time, signed export licenses despite lacking the proper authority to do so. Putin denied the existence of these licenses despite the existing copies of the licenses signed by him.Aven, the Chairman of the Committee on Foreign Economic Relations of the RSFSR at the time, located in Moscow, covered him up.

An investigation showed that various businesses received a total of $122 million for their exports.INVESTIGATION IS SILENCED; INVESTIGATORS DEADIn 1992, the scandal was silenced. The documents disappeared from the archives.In 1999, Putin came to power. He is still the President of Russia in 2018.Salye lived in exile ten years after Putin’s rise and gave several interviews in 2010.Почему Марина Салье молчала о Путине 10 лет?

In 2012, this story broke again and many believed that it had potential to sink Putin. Salye re-appeared in St.Petersburg at a protest and made a public speech. Few days after that, she suddenly died. She predicted her death and claimed that many of her colleagues were murdered.THE ARCHIVE LIVESThe copies of the documents were published on Salye’s Facebook account.

The files show that Putin and his deputy exported raw materials at a low price and without paying customs taxes. One of the documents addressed to Putin and Aven. The comments on the right read: “God Bless!” “After all, Putin did kill her…” “thank you” and “My respect and eternal glory to the Citizen of Russia for her citizen position. Marina Salye is the elite of our civilization…”Vladimir Ivanidze, a Radio Svoboda journalist researching this story had to leave the country.

In March 2008, Benczkowski, then a principal deputy assistant attorney general, responded to Sen. Patrick Leahy, a Vermont Democrat, who penned a separate letter to then-Attorney General Alberto Gonzales regarding Kavanaugh’s allegedly false statements regarding detention and interrogation policies, saying the public-integrity section had “reviewed this matter and determined there was not sufficient basis to initiate a criminal investigation.” This answer has been disputed and is still a matter of controversy.Key moments from Kavanaugh's past confirmation hearings could shape fight ahead

Kavanaugh is joined by family members during Capitol Hill proceedings in 2006. From left are his father, Ed Kavanaugh; his mother, Martha; his wife, Ashley; and his daughter Margaret.(CNN)When Supreme Court nominee Brett Kavanaugh sits for his confirmation hearing this week, Democratic senators will pick up where they left off more than a decade ago, when the then-staff secretary for President George W. Bush was up for a seat on a powerful DC appellate court.

Back then, Sen. Chuck Schumer, of New York, then also in the minority, led the charge criticizing Kavanaugh."We feel that the nominee is not apolitical enough, not seasoned enough, not independent enough and has not been forthcoming enough," Schumer said.

Many of the same players have now returned, although much has changed. Schumer, no longer on the Senate Judiciary Committee, is the Senate minority leader and hopes to block Kavanaugh's confirmation to the nation's highest court.

Meanwhile, Kavanaugh has issued some 300 opinions from the US Court of Appeals for the District of Columbia Circuit, to which he was ultimately confirmed, making him immune from accusations that he has no judicial experience.

Some Democrats, triggered by hundreds of thousands of newly released documents from the Bush library, are eager to return to Kavanaugh's White House years to further probe his service there and question whether his congressional testimony in 2006 was fully transparent. They could delve into such issues as the war on terrorism, the controversial use of signing statements, Kavanaugh's work on judicial nominees, and executive orders -- highlighting the conservative credentials of a nominee who they fear could solidify the rightward tilt of the Supreme Court for decades.

9/11

When he accepted his nomination to the Supreme Court in July, Kavanaugh recalled that he had had his first date with his future wife, Ashley, the day before the Sept. 11, 2001, terrorist attacks.

"The next morning, I was a few steps behind her as the Secret Service shouted at all of us to sprint out the front gates of the White House, because there was an inbound plane," Kavanaugh told the audience assembled at the White House.

The Sept. 11 attacks would go on to define much of the Bush administration, and Kavanaugh would go from working in the White House Counsel's Office to becoming the staff secretary.

In 2003, Bush nominated Kavanaugh for a seat on the DC appellate court, and Kavanaugh had an initial hearing in 2004. But his nomination stalled -- blocked from a vote along with other judicial appointments in the run-up to the presidential election -- and afterward, Democrats filibustered judicial nominees.

In 2006, Kavanaugh received a second hearing, and senators zeroed in on issues related to the war on terrorism.

Democratic Sen. Dick Durbin, of Illinois, asked Kavanaugh what role he played at a time when the White House was grappling with issues such as the infamous "torture memos" concerning detention and interrogation policies.

Durbin noted that the committee had confirmed Jay Bybee, a former assistant attorney general at the Department of Justice, to a seat on the 9th US Circuit Court of Appeals in 2003 only to learn later that he had signed the 2002 "torture memos" the Bush administration used to justify so-called enhanced interrogation techniques against suspected al Qaeda operatives.

The primary memo, titled "Standards of Conduct for Interrogation under 18 U.S.C. (sections) 2340-2340A," stated that while a "significant range of acts" might be considered cruel, inhuman or degrading treatment, such acts did not rise to the level of torture."Did you know that Mr. Bybee authored the torture memo or similar memos at the time of his nomination?" Durbin asked Kavanaugh.

"No, Senator," Kavanaugh responded. "I was not aware of that memo until there was public disclosure of it in the news media." He added that the administration had later repealed the memo. "I agree with that decision," he said, adding, "I do not believe the analysis in that memo was correct."

Durbin also wanted to know what role Kavanaugh had played in nominating William J. Haynes II to the 4th US Circuit Court of Appeals, given that much of Kavanaugh's portfolio was dedicated to judicial nominations. Haynes, as general counsel to the Department of Defense, had penned a memo on "counter-resistance techniques" recommending the authorization of some enhanced interrogation methods."At the time of the Haynes nomination, what did you know about Mr. Haynes' role in crafting the administration's detention and interrogation policies?" Durbin asked.

"Senator, I did not -- I was not involved and am not involved in the questions about the rules governing detention of combatants or -- and so I do not have the involvement with that," Kavanaugh said. "And with respect to Mr. Haynes' nomination, I've -- I know Jim Haynes, but it was not one of the nominations that I handled."

After Kavanaugh's confirmation, however, The Washington Post published a blockbuster report in June 2007 about a disagreement within the administration over whether enemy combatants should have access to lawyers. The article said Kavanaugh and associate White House counsel Bradford A. Berenson -- both former clerks to Justice Anthony Kennedy -- had argued that Kennedy, whose vote could be key if the issue ever went to the Supreme Court, would "never accept absolute presidential discretion to declare a U.S. citizen an enemy and lock him up" without access to an attorney.The day after publication, Durbin fired off a letter to Kavanaugh saying that in light of the Post's story, Kavanaugh's sworn testimony appeared "inaccurate and misleading."

According to Durbin, Kavanaugh never responded. After President Donald Trump nominated Kavanaugh for the Supreme Court, Durbin posted a copy of his letter on Twitter, writing, "In 2007 I sent Brett Kavanaugh this letter asking to explain his inaccurate and misleading testimony to the Senate Judiciary Committee. I'm still waiting for an answer."

In 2007 I sent Brett Kavanaugh this letter asking to explain his inaccurate and misleading testimony to the Senate Judiciary Committee. I'm still waiting for an answer. pic.twitter.com/c7XoGJKDSj

— Senator Dick Durbin (@SenatorDurbin) July 10, 2018Back then, Durbin was not the only one who was concerned about Kavanaugh's testimony before the committee. Sen. Patrick Leahy, a Vermont Democrat, penned a separate letter to then-Attorney General Alberto Gonzales asking whether Kavanaugh had "falsely testified."

But according to a participant in the White House discussion in 2002, Kavanaugh was brought in to focus solely on the issue of access to counsel and whether detainees should be afforded the ability to consult with lawyers. He was asked to participate because of his familiarity with how Kennedy might view the issue if it ultimately came before him, the source said.

Kavanaugh did not discuss the broader issue of presidential power to detain suspected terrorists under the laws of war, according to the source.

"To my knowledge, Kavanaugh was never responsible for handling any issues related to detainee treatments in the White House," the source said. "He participated in this meeting as a former Kennedy clerk to help assess how the Supreme Court might rule on this narrow issue pertaining to the right to counsel."

In March 2008, Brian Benczkowski, then principal deputy assistant attorney general, responded to Leahy about allegations that Kavanaugh had made false statements.

"The Public Integrity Section of the Criminal Division reviewed this matter and determined that there was not a sufficient basis to initiate a criminal investigation," he said.

Leading up to this week's hearing, Raj Shah, a White House spokesman, charged Durbin with being "deliberately misleading" about Kavanaugh's testimony.

Shah said Durbin had asked Kavanaugh about his involvement in drafting specific legal memorandums.

"At no point did Sen. Durbin ask the judge about other legal issues pertaining to the war on terrorism, such as detainee's legal rights," he said.

And Gonzales, who before becoming attorney general had served as White House counsel and was Kavanaugh's boss at the time of the discussion in question, said in a statement last month that only a "limited number of personnel" were read into the sensitive legal issues surrounding the authorization of the use of enhanced interrogation techniques on high-value detainees.

Signing statements

During his 2006 confirmation hearing, senators pressed Kavanaugh on his knowledge of Bush's aggressive use of signing statements -- pronouncements a president can issue upon the signing of laws. The statements are controversial because critics believe they are a way for presidents to bypass provisions they disagree with.

In particular, Bush came under criticism for a signing statement on a 2006 defense spending bill, which included an amendment by Sen. John McCain that protected against the torture or inhumane treatment of detainees. Bush's statement said he would interpret limits on interrogation techniques in the context of his constitutional authority to protect the nation's security.Then-Judiciary Chairman Arlen Specter, of Pennsylvania, questioned Kavanaugh about his role in signing statements. "Do you have anything to do with the President's policy on so-called signing statements?" he asked.

"I help ensure that relevant members of the administration have provided input on the signing statements," Kavanaugh replied, adding, "I do help clear those before the President sees them."

When Leahy brought up the McCain amendment, Kavanaugh said, "I believe, the signing statement identified, that this fell into something that the President has authority on."

The documents related to Kavanaugh's service that have been released so far haven't revealed much about his role in presidential signing statements, but he has addressed the issue since becoming a judge.

In a speech at Case Western Reserve University School of Law in 2013, Kavanaugh was asked whether signing statements allowed a president to ignore provisions in laws they think are unconstitutional.

Kavanaugh said such statements are the "traditional exercise" of presidential power, but he stressed that an injured party may take his grievance to court if he believes the president is not following the law.

In an opinion in Aiken County v. State of Nevada that same year, Kavanaugh wrote that "if the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise. But the President may not decline to follow a statutory mandate or prohibition simply because of policy objections."Although Democratic senators have complained that they want to know more about the signing statements Kavanaugh would have worked on as White House staff secretary, the current Judiciary Committee chairman, Chuck Grassley, of Iowa, has refused to release documents from that time frame.

Warrantless surveillance of US citizens

At the 2006 hearing, Leahy also asked Kavanaugh about his knowledge of a controversial Bush administration program that authorized the National Security Agency to conduct surveillance on people in the United States, including US citizens, when gathering intelligence on foreigners.

The New York Times had broken the news about the existence of the program on Dec. 16, 2005, reporting that months after the Sept. 11 attacks, Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without court-approved warrants."Did you see documents relating to the President's NSA warrantless wiretapping program?" Leahy asked.

"Senator, I learned of that program when there was a New York Times story -- reports of that program -- when there was a New York Times story that came over the wire, I think on a Thursday night in mid-December of last year," Kavanaugh replied. He said definitively that he knew "nothing at all" about the program.

Recently released documents show that Kavanaugh was asked about talking points "for the legal authority for the NSA activities" on Dec. 19, 2005, but that was days after the program had become public.

Victim compensation

During Kavanaugh's stalled 2004 confirmation hearing, Leahy asked him about his involvement in offering a bill to Congress after Sept. 11 that protected the airline industry from having to take responsibility for the terrorist attacks.

The senator noted that when the bill first came up, it had no compensation for victims of the attacks.

"It had immunization for the airlines, nothing for the victims," Leahy said, noting that the legislation ultimately provided for both.

He pressed Kavanaugh on why the early version of the law did not include compensation.

"You vehemently opposed any compensation for the victims' families," Leahy said, adding, "You insisted the bill only limit the liability of the airline industry."

Kavanaugh pushed back, arguing that there were "two separate issues": one concerned the airlines' liability, and the second compensation for victims.

"The two ultimately got linked in the same bill," he said.

Kavanaugh concluded, "I do not remember opposing linkage of the two bills."

Executive privilege on presidential records

Kavanaugh is credited with authoring Executive Order 13233, which granted Bush an unprecedented amount of executive privilege and privacy regarding presidential records (a move later revoked by President Barack Obama with Executive Order 13489).

Leahy asked Kavanaugh about his involvement in drafting the order in 2004.

"After the order was issued, a number of historians, public interest organizations, opposed the change," Leahy said. "The Republican-led House Committee on Government Reform approved a bill to reverse this. A lawsuit to overturn it was filed by Public Citizen, American Historical Association, Organization of American Historians and a number of others. Why did you favor an increase in the secrecy of presidential records?"

"Senator, with respect to President Bush's executive order, I think I want to clarify how you described it," Kavanaugh replied. "It was an order that merely set forth the procedures for assertion of privilege by a former President." He defended his actions by saying that "the goal of the order was merely to set forth procedures."

Judicial nominees

Judicial nominations are another likely area of contention for Kavanaugh's confirmation. During his tenure at the White House, he worked on the confirmation of lower court judges, but he was also there for the nominations of John Roberts, Harriet Miers (later withdrawn) and Samuel Alito to the Supreme Court.

On Friday, Grassley was informed that the White House had concluded that any documents reflecting Kavanaugh's "deliberations and candid advice concerning the selection and nomination of judicial candidates" were covered by constitutional privilege and would not be released.

The White House's refusal to release documents on one of Kavanaugh's core responsibilities, and Grassley's refusal to release documents from the nominee's service from 2003 to 20006, means this issue and others, like what Kavanaugh's actions were during the response to Hurricane Katrina, will not be made public.https://www.cnn.com/2018/09/03/politics ... index.html

How Kavanaugh’s Last Confirmation Hearing Could Haunt Him

Two Democrats feel that the Supreme Court nominee misled them about his awareness of terror-detainee policy during the Bush administration.

David A. Graham is a staff writer at The Atlantic, where he covers U.S. politics and global news. Facebook Twitter EmailJul 17, 2018George W. Bush, Brett Kavanaugh, and Anthony Kennedy

Justice Anthony Kennedy swears Brett Kavanaugh into office on June 1, 2006.Larry Downing / ReutersThe last time Brett Kavanaugh appeared before the Senate Judiciary Committee, in May 2006, the country was slowly learning about some of the extraordinary steps the George W. Bush administration had taken as part of its anti-terrorism efforts—from warrantless wiretapping to torture of detainees.

Kavanaugh had spent five years in the White House, and was nominated for a lifetime appointment on the D.C. Circuit Court of Appeals. Democratic senators wanted to know what he knew about those controversial programs. The answers that Kavanaugh gave could complicate Senate approval of his nomination to the Supreme Court.

Although Kavanaugh is a favorite for confirmation, Republicans hold a razor-thin margin in the Senate. Before Trump nominated Kavanaugh, Senate Majority Leader Mitch McConnell warned that he might be tough to confirm because of his long written record, ripe for critics to pick over. Although Kavanaugh’s views on Roe v. Wade have received the most attention so far, but Bush-administration policy on detainees could be another bruising topic. The Judiciary Committee will review an enormous set of documents from the Bush White House that could settle accusations from Democratic senators that Kavanaugh misled them about his role in detainee policy during his prior appearance. The issue offers another example of how the abuses and overreaches of the Bush era continue to haunt those involved.

Following the September 11 attacks, government officials wrote and approved memos justifying interrogation techniques for terror suspects that ran afoul of U.S. and international laws against torture. The Bush administration also secretly authorized warrantless surveillance of U.S. citizens under the top-secret Terrorist Surveillance Program. Bush attorneys argued that both approaches were legal under the president’s “inherent” authority as commander in chief, and the limits of executive authority are among the most important legal issues the high court deals with. Legal scholars have already focused on Kavanaugh’s vision of executive power as unusually expansive.

After working on Bush’s legal team during the 2000 election, Kavanaugh joined the White House, where he worked first in the White House counsel’s office and then as the staff secretary, a crucial gatekeeper role. In 2003, Bush nominated him to the powerful D.C. Circuit court, but his nomination stalled. Three years later, Kavanaugh got another chance. During his confirmation hearings, Democratic Senators Patrick Leahy and Richard Durbin quizzed Kavanaugh on what he knew about administration decisions regarding the war on terror, and especially on the treatment of detainees. Senators were feeling burned, because they had in 2003 confirmed Jay Bybee, a former Bush Justice Department official, to a lifetime judgeship only to learn later of his role in the authorship of the so-called torture memos justifying coercive interrogation of individuals in U.S. custody.

During the 2006 hearing, Durbin asked Kavanaugh about the judicial nomination of William Haynes, who had also been involved in detainee decisions as the general counsel at the Pentagon. (Haynes was never confirmed.) “At the time of the nomination, what did you know about Mr. Haynes’s role in crafting the administration’s detention and interrogation policies?” Durbin asked.

“Senator, I did not, I was not involved and am not involved in the questions about the rules governing detention of combatants or—and so I do not have the involvement with that,” Kavanaugh replied.

Leahy asked Kavanaugh about the warrantless wiretapping program, which Kavanaugh repeatedly said he’d learned of from news reports. Leahy also asked about the harsh treatment of detainees.

Leahy: What about the documents relating to the administration’s policies and practice on torture; did you see anything about that, or did you first hear about that when you read about it in the paper?

Kavanaugh: I think with respect to the legal justifications or the policies relating to the treatment of detainees, I was not aware of any issues on that or the legal memos that subsequently came out until the summer, sometime in 2004 when there started to be news reports on that. This was not part of my docket, either in the Counsel’s Office or as Staff Secretary.

Kavanaugh was confirmed later that May. But the following summer, news reports cast some doubt on his answers during the hearing. In a Pulitzer Prize–winning story on June 25, 2007, then–Washington Post reporters Barton Gellman and Jo Becker said Kavanaugh had argued to other Bush officials that Justice Anthony Kennedy, for whom he had clerked, would likely not accept the idea of indefinite detention of U.S. citizens without lawyers.

The following day, NPR added more detail: “In fact, in 2002, Kavanaugh and a group of top White House lawyers discussed whether the Supreme Court would uphold the Bush administration’s decision to deny lawyers to American enemy combatants. Kavanaugh advised the group that the Supreme Court’s swing voter, Justice Anthony Kennedy, would probably reject the president’s assertion that the men were not entitled to counsel.”

Durbin told NPR he felt “perilously close to being lied to” by the nominee, adding, “I will just say that he might have decided that he could split the difference here and give me an answer in the negative. But he had to know he was misleading me and the committee and the people who were following this controversial nomination.” He also sent a letter to Kavanaugh asking about the apparent discrepancy:

I request that you provide the Senate Judiciary Committee with an explanation for this apparent contradiction. In addition, I request that you disqualify yourself in all pending and subsequent cases involving detainees and enemy combatants. Your lack of candor at your nomination hearing suggests you cannot approach these cases with impartiality and an open mind.

Leahy, meanwhile, sent a letter to Attorney General Alberto Gonzales asking him to investigate whether Kavanaugh had lied. “False testimony by any witness is troubling and undermines the Senate’s ability to fulfill its constitutional duties on behalf of the American people,” Leahy wrote. “But my concern is heightened because the subject matter of the possibly false testimony was highly controversial and played a critical role in many Senators’ consideration of Mr. Kavanaugh’s appointment to one of the courts most involved in reviewing those very same detention policies.”

In March 2008, the Justice Department wrote back to Leahy, saying the public-integrity section had “reviewed this matter and determined there was not sufficient basis to initiate a criminal investigation.” (In a strange coincidence, the person who signed the letter was Brian Benczkowski, who was last week confirmed to lead the DOJ’s criminal division despite controversy over his representation of a Russian bank.) Kavanaugh continued to sit on judicial panels that considered detainee-related questions.

And nothing else happened. Although two senators were accusing a federal judge of some degree of lying, they had little remedy. Impeachment of federal judges is rare and usually reserved for the most obvious crimes, and the trick with lifetime appointments is that once senators vote, they don’t usually get a chance to revisit old questions.

Until now. Kavanaugh’s Supreme Court nomination means Durbin and Leahy, who are both still members of the Judiciary Committee, can reopen the matter. The day after Kavanaugh’s nomination, Durbin tweeted his 2007 letter, saying, “I’m still waiting for an answer.” Durbin declined an interview request, but during a committee hearing on Thursday, he mentioned the letter again. “He’s going to get a chance to respond now, when he appears before this committee under oath, as to what he was trying to tell us, and what he actually did tell us when it came to this important issue,” Durbin said. Leahy’s office also declined an interview request. The White House declined to comment.

The key will likely be the documents that the Judiciary Committee receives pertaining to Kavanaugh, in what’s expected to be the largest tranche of papers ever produced on any judicial nominee. Those papers could help clarify the 2002 meeting that the Post and NPR reported, as well as offer more indications of what Kavanaugh knew. Kavanaugh will likely tell senators that even if he consulted about Kennedy, he was not directly involved in crafting detainee policy. Democrats are likely to argue that Kavanaugh misled them, in that he suggested he wasn’t aware of the policy discussions at all. Unhelpfully for Kavanaugh, the former Bush aide Karl Rove, who strongly supports the judge’s nomination, told Neil Cavuto that as staff secretary, Kavanaugh was involved in almost all policy issues.

Assuming Durbin and Leahy do press Kavanaugh, he’ll be only the latest public official to come under scrutiny for his role during the period of torture. But while plenty of officials have faced tough questions, few of them have actually seen their career halted. Haynes, the judicial nominee about whom Durbin asked Kavanaugh back in 2006, is a rare case of someone who was blocked.

Bybee remains on the federal bench. John Yoo, one of the authors of the Torture Memos, returned to his prestigious teaching post at the University of California, Berkeley’s law school. John Brennan, who served in the Bush CIA, had hopes to become CIA director during the Obama administration, but initially withdrew from the running over liberal criticism of his role in torture. In the end, that was just a delay: He was nominated and confirmed to run the CIA during Obama’s second term. During her confirmation hearings this spring, Gina Haspel, the current CIA director, faced tough questions over her administration of a CIA “black site” where torture occurred during the Bush era. In the end, however, she was confirmed, too, by a 54–45 vote.

If those cases offer any predictions, Kavanaugh will face some withering questions during his Senate hearings, but he still has a good chance at jumping from the Senate hot seat to the Supreme Court bench.

When Supreme Court nominee Brett Kavanaugh sits for his confirmation hearing this week, Democratic senators will pick…http://www.cnn.comHow Kavanaugh's Last Confirmation Hearing Could Haunt Him

The following day, NPR added more detail: "In fact, in 2002, Kavanaugh and a group of top White House lawyers discussed…http://www.theatlantic.com

CONCLUSION

The democracy in the United States is in an extreme danger. The mass media and general audience are overwhelmed with the flow of current events. The appointment of Kavanaugh, however, and its consequences will have a drastic impact on the future of this country. Please share on the social media.*All facts and photos are in public domain and available through Google. Links to the original sources are included.

Thread by @jennycohn1: "The US attorney scandal in which may have been involved was/is a big deal, & the Bush White House claimed to have "lost" 22 M […]" #Kavanaugh #WhatAreTheyHiding

Jennifer Cohn

The US attorney scandal in which #Kavanaugh may have been involved was/is a big deal, & the Bush White House claimed to have "lost" 22 MILLION emails when Congress tried to subpoena them to investigate the scandal in 07. Some were found in 09... 1/

2/ Thread about the US attorney scandal (from the Bush years) in which #Kavanaugh may have been involved, and the 22 MILLION emails that the Bush White House claimed had been lost when Congress subpeonaed them to investigate the scandal in 2007.

3/ According to @craigunger, the emails were hosted on a server owned by a company called Smartech.

4/ According to Comey, Russia hacked not only the DNC, but also some "old" documents from the RNC that were hosted on a server owned by ... you guessed it... Smartech.

5/ Sometimes it's the "old" documents that may be the most damning. #WhatAreTheyHiding cc. @SenatorLeahy @ronwyden @kamalaharris6/

7/ As posted by @soychicka earlier today, given that Russia is known to have hacked Smartech (see source & discussion above), it is certainly possible, perhaps even likely, that Russia has copies of Kavanaugh's emails. #WhatAreTheyHiding @senatorleahy @ronwyden

How Brett Kavanaugh Made Russian Election Interference Easier and Robert Mueller’s Job Harder

The Supreme Court nominee gutted part of a law that prevented foreign influence in US elections.

Pema LevySep. 5, 2018 1:45 PM

Supreme Court nominee Brett Kavanaugh during the first day of his confirmation hearing on Tuesday.Ken Cedeno/ZUMA

In February, special counsel Robert Mueller handed down a stunning indictment against 13 Russians and three Russian companies for interfering in the 2016 election. The 37-page document laid out an expansive and well-financed influence operation to sow discord in the election and help elect Donald Trump. It included charges of conspiracy to defraud the United States, conspiracy to commit bank and wire fraud, and aggravated identity theft.

To the surprise of many, there were no election-related charges. The reason is almost certainly a 2011 ruling by Brett Kavanaugh.

From the start, Kavanaugh’s nomination to the Supreme Court has generated concern that the DC Circuit Court of Appeals judge, who has expansive views of presidential power, immunity, and secrecy, will protect Trump from the Russia probe if confirmed to the nation’s highest court. But little attention has been paid to a decision he wrote that already paved the way for foreign election interference and is making Mueller’s job harder—a decision that some election law experts view as sloppy and politically motivated.

In 2011, two foreign nationals brought a case challenging a 2002 law that bans foreign contributions to US political campaigns or electioneering efforts. It was the year after the Supreme Court’s Citizens United decision had opened campaigns to a deluge of spending from private companies and unions, and this case seemed likely to determine whether the next step in campaign finance deregulation was to open campaigns to foreign money as well.

In Bluman v. Federal Election Commission, Kavanaugh wrote for a three-judge panel that people who are not citizens or legal permanent residents cannot contribute directly to campaigns or to “express advocacy” work, which explicitly asks voters to support or oppose a specific candidate. But he gutted the portion of the law that banned foreign spending that is not “express advocacy.” Following his ruling, some of the ads paid for by the Russians in 2016 and named in the February indictment—featuring such messages as “Hillary Clinton Doesn’t Deserve the Black Vote” and “Hillary is Satan, and her crimes and lies had proved just how evil she is”—may well be legal foreign influence activity.

Justin Levitt, an election law expert and former Justice Department official during the Obama administration, says that when it comes to most noncitizens, “Congress said you may not give money or spend money in an attempt to influence an election. Period. Kavanaugh implemented a huge carveout.”

The ramifications of this decision are evident not only in the lack of campaign-related charges in the February indictment; one of the indicted companies repeatedly cited Kavanaugh’s ruling in a court filing seeking to get the existing charges against it dismissed. During the 2016 presidential campaign, Concord Management and Consulting, which is controlled by a Russian oligarch close to President Vladimir Putin, allegedly spent $1.25 million per month to set up rallies, spread disinformation, and “interfere in U.S. political and electoral processes without detection of their Russian affiliation,” according to the indictment. For this, Concord was charged with conspiracy to defraud the United States.

Now, the company is now using Kavanaugh’s decision in Bluman to try to have the charge dismissed on the grounds that its activity was legal. “Foreign nationals are not barred from issue advocacy through political speech such as what is described in the indictment—they are only precluded from willfully making expenditures that expressly advocate the election or defeat of a particular candidate,” the company’s lawyers wrote. Election law expert Rick Hasen of the University of California, Irvine School of Law told the Washington Post in July that Kavanaugh’s decision creates “potentially a huge loophole for foreign and undisclosed issue ads on federal elections.”

Through his opinions and his work as an aide in the George W. Bush administration, Kavanaugh has proven himself a deep skeptic of campaign finance regulation. The Supreme Court may take up two campaign finance cases this fall, giving Kavanaugh, if confirmed, an immediate chance to begin to further unwind restrictions on campaign donations and potentially increase foreign influence on US elections.

The Bluman case also led some election law experts to question Kavanaugh’s process as a judge. The case was about the right of foreigners to donate to candidates, yet Kavanaugh chose to invalidate part of a federal statute, the Bipartisan Campaign Reform Act of 2002, that was not even at issue. “This statute, as we interpret it, does not bar foreign nationals from issue advocacy—that is, speech that does not expressly advocate the election or defeat of a specific candidate,” Kavanaugh wrote, without explaining the rationale for his assumption.

Kavanaugh “wiped out a big chunk of a congressional statute without ever explaining why,” says Levitt. “It looks like redrafting a statute to do something he likes better, rather than issue a constitutional holding. And that’s not something we want our judges to do.”

Update: Sen. Amy Klobuchar (D-Minn.) asked Kavanaugh about this case during his confirmation hearing Wednesday afternoon, noting that his opinion “left open the possibility of unlimited spending by foreign nationals” on issue advocacy in US elections and that a Russian company was citing it in its defense against Mueller’s indictment. In response, Kavanaugh appeared confused by the question, appearing not to remember this part of his opinion or to be aware of its ramifications. https://www.motherjones.com/politics/20 ... ob-harder/

Mazars and Deutsche Bank could have ended this nightmare before it started.They could still get him out of office.But instead, they want mass death.Don’t forget that.

@maziehironoFollow Follow @maziehironoMoreThese are the docs Rs don't want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable. I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form.

Yeah, it's not like I'm not entertained by the abundant bipartisan theatre. I just want to know when the vote is and if this mobbed up no experience motherfucker gets elected... I just (most working Mericans) don't have the time to spend to be a good informed citizen any more, which indubitably works to their advantage. Oh, btw while I'm here, I think most RI's agree, SCJ Scalia got the pillow, and NOW, John Kasich says McCain was 'put to death' ...thoughts, comments, PITHY data?

If Barthes can forgive me, “What the public wants is the image of passion Justice, not passion Justice itself.”

Brett Kavanaugh Refers To Birth Control As ‘Abortion-Inducing Drugs’ At Confirmation Hearing

Polly Sigh

Kavanaugh knew exactly who Sen Harris was referring to when she asked him if he'd discussed the Mueller probe with anyone at the Kasowitz law firm. His former Bush WH colleague Edward McNally is a partner there & spoke of Kavanaugh in this Jul 2018 piece.

Former US Atty Edward McNally, now a partner at Kasowitz's law firm, was Trump's former pick to replace @PreetBharara at SDNY. McNally also worked with Kavanaugh at the Bush WH and recently wrote a nice piece about Kavavnaugh's nomination.

Polly SighInteresting that the 2003 "SPYING" email to Kavanaugh is from Barbara Leeden, who's now a Grassley staffer in the Russia probe & the 2nd person tied to Mike Flynn who launched a covert HRC email operation [the first being now-deceased Peter Smith].

In his 2016 autobiography, Alberto Gonzales acknowledged Kavanaugh & Edward McNally [now a partner at Kasowitz law firm] as 2 of the lawyers who regularly attended his staff meetings when he served as Bush WH counsel. Kavanaugh & McNally worked closely during that time.

an un indicted co conspirator nominated him and after that when an un indicted co conspirator is no longer president he will be on the Supreme Court for life

women are going to lose their right to their own bodies

Laurence Tribe

I don’t say this lightly, but claiming to have forgotten something in order to win confirmation when the nominee can be shown not to have forgotten becomes an impeachable offense and a basis for removing that nominee after confirmation

Mazars and Deutsche Bank could have ended this nightmare before it started.They could still get him out of office.But instead, they want mass death.Don’t forget that.

Brett Kavanaugh can evade our questions on Roe all he likes, but he can’t dodge his own words in this email. Make no mistake, Roe v. Wade can be “settled law” today and overturned tomorrow.

HERE'S LOOKING AT YOU LISA MURKOWSKI

think your Native Americans constituents are going to like this?

Senator Mazie Hirono‏Verified account

@maziehironoFollow Follow @maziehironoMoreThese are the docs Rs don't want you to see—because they show that Judge Kavanaugh wrongly believes that Native Hawaiian programs are Constitutionally questionable. I defy anyone reading this to be able to conclude that it should be deemed confidential in any way, shape, or form

Here are Judge Kavanaugh's own words on Native Hawaiians. In Rice v. Cayetano, he drew conclusions based on these factually wrong and incredibly offensive claims

emptywheel‏

Kavanaugh says he might have a conflict develop on one of the kay days for the Bybee torture memo?

5 lies Kavanaugh may have told the Senate.......stay tuned

Mazars and Deutsche Bank could have ended this nightmare before it started.They could still get him out of office.But instead, they want mass death.Don’t forget that.